Monday, January 6, 2014

Two decades later, another Bosman case simmers

Jean-Louis Dupont, a key member of Jean-Marc Bosman's legal team, has a new challenge: taking on UEFA's Financial Fair Play regulations.

Originally published in The Irish Examiner, 26th November 2013.

Earlier this year, Jean-Marc Bosman was sentenced to 12 months in prison for assault and battery.
Living on benefits in Belgium, his life collapsed in a mire of alcoholism and mental health problems since his landmark legal victory in 1995, a generation-defining football moment. Though his personal story is more complex, there is an inevitable conclusion to draw: Bosman’s scars are the war-wounds of a weary, lengthy battle with a super-power.

He took on the force of football’s governing body. He bruised them, broke them, embarrassed them. But the long-lasting effects of the fight took him down too. An unwilling martyr.

But 20 years on from Bosman’s case initially being submitted to the European Court of Justice, another anti-hero is stepping forward.

In May of this year, a football agent, Daniel Striani, lodged a complaint with the European Commission (EC) on the grounds that Uefa’s Financial Fair Play (FPP) regulations are anti-competitive and negatively impact his ability to generate income. His lawyer is Jean-Louis Dupont, a key member of Bosman’s legal team, who has a pedigree for taking on high-profile, high-impact sports law cases and winning them.

Striani’s case centres on FFP’s ‘break-even’ rule and its basic principle that a club can only spend what it earns (though there are some ‘acceptable deviations’). Failure to do so will result in suspension from Uefa competitions.

With clubs having less to spend on transfers and with wages likely to decrease, Striani’s economic situation will be adversely affected. Clearly, FFP contravenes EU law — most notably restraint on trade and, in the case of players, there’s perhaps a violation of free movement of workers also. However, so far, the EC’s view is that FFP regulations, though perhaps not perfect, are proportional to what could happen to football clubs without stringent financial stipulations. In simple terms, the end will justify the means.

But according to Dupont, the break-even rule will only serve to widen the gulf between the traditional, ‘big’ teams and everyone else. “The break-even rule only ossifies the existing market structure,” he argues. “Even worse, it increases the gap between the haves and the have-nots. Uefa, instead of coming up with a very technical answer to a very technical financial issue, came up with a rather political and ideological one instead.”

There is also the question of whether FFP in its current format is legitimate and necessary. Uefa extols its virtues — how it will provide long-term financial stability to football clubs and how it will preserve the integrity of the game. The second point, in particular, irritates Dupont, who feels Uefa’s territorial plan is flawed and discriminates against smaller EU states, including Ireland.

“Under Uefa rules, each national football association must organise its competitions within its boundaries. By maintaining those rules, Uefa denies top club football to places like Dublin, Brussels [and] Vienna. Consequently, Uefa cannot use the “integrity argument” regarding FFP since it has itself produced a structural playing field that’s uneven to begin with.”

For Dupont, the current FFP regulations overlook the importance of the size of domestic markets. Under FFP, each league and each club is treated the same regardless of the commercial gulf between them. Smaller clubs will not be able to invest over the long-term and will stay small. That, according to Dupont, is anti-competitive and goes against EU law.

So, what are the alternatives to FFP? How else can Uefa safeguard against reckless financial mismanagement of football clubs? Dupont has spoken before about a ‘luxury tax’ — clubs that want to overspend agree to a levy, with the money then distributed in a way that promotes competitive balance or other legitimate objectives. He believes that changes to Uefa’s territorial pattern would provide viable alternatives to FFP, alternatives that wouldn’t breach EU law, alternatives that would see smaller EU countries afforded opportunities to become more competitive.

Dupont says: “If tomorrow, Scotland and Ireland would decide to have a common Premier League, would it improve (even slightly) the level of football in both territories? I think it would. This example is just to show that even small changes would make a difference.”

Striani is not challenging Uefa’s existing territorial pattern as part of his case but Dupont feels a club would stand a reasonable chance in the EU courts if they decided to pursue a legal route. “If a Dublin club agrees with the English Premier League to play with them, from the perspective of EU law, it is their absolute right to do so. Therefore, any entity (FAI, Uefa, etc) that would try to stop it from happening would face an uphill battle. They would bear the burden of proof and would need to justify why such a violation of EU law would be absolutely necessary. I have my doubts that they would succeed.”

When informed of Dupont’s latest project, a prickly Uefa president Michel Platini brushed it off, saying he had a letter of support from the EC.

Dupont dismisses that support as political, not legal.

Dupont has been here before but Daniel Striani hasn’t. The fight will last a long time. Bosman’s took five years. It took his career too. And ruined his life.

Football. A fickle mistress.

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